CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 12, 2000

• 1535

[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good afternoon, colleagues, ladies and gentlemen, and officials, and a special welcome to the Forum for Young Canadians for attending this citizenship and immigration committee meeting. It's meeting 22, and we're here to start our clause-by-clause review of Bill C-16, an act respecting Canadian citizenship.

Joining us today from Citizenship and Immigration Canada are Rosaline Frith, Director General, Integration; Norman Sabourin, Registrar for Citizenship; Theresa Harvey, Deputy Director, Social Policy and Programs, Selection Branch; Eric Stevens, Legal Counsel, Legal Services; and Max Wolpert, also Legal Counsel, Legal Services.

I want to thank the officials for being here and for being prepared to answer any of our questions with regard to the clauses.

The usual procedure, members, is that as we go clause by clause, I will ask if there are any particular questions. If there are none, or if there are no amendments that have been given to us, then I'll call the question.

If there are going to be questions and/or a lot of debate, what perhaps we might do is hold those clauses in abeyance until such time as we can get to them. What I'd like to do is get through as many of the clauses as we possibly can, then return to the ones there may have to be debate on. We'll see. So as I call the clauses, please signify if there will be some technical questions we might have of the officials.

You all have a package of the amendments that have been submitted to the clerk. I believe the government has four amendments, the Bloc has one, and Canadian Alliance has five. We'll also, if I'm not mistaken, accept some amendments from the floor if absolutely necessary for clarification. But we'll get to that.

Now that we're all here, maybe we can get down to business. I hope we're here until about six o'clock, then we're back here tomorrow with the view, I think, as agreed, that we could probably complete this by 11:30 or 12. Then hopefully we can get it to the House for report stage on Friday, which means that two weeks after we come back we can start debating it.

Yes, Bernard.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): I only have one question, Mr. Chairman. Naturally, we will go through clause by clause, but if we have a clause for which there has been no amendments by one of the parties, will it be possible, as the officials from the Department of Citizenship and Immigration are here, to go back if, for various reasons, there were new developments?

I am thinking about clause 8, which deals with adoption. I do not know if the clerk provided this information, but I have just received from the ministère de la Santé et des Services sociaux du Québec a memo dated today expressing several reservations. I would like to know if, when we get to clause 8, we will be able to ask questions to the officials.

[English]

The Chair: Yes.

[Translation]

Mr. Bernard Bigras: Naturally, I will be able to submit amendments from the floor, at the report stage.

[English]

The Chair: Sure. A couple of things. If there are some technical questions of any clauses for the members of the officials, that would be perfectly fine. There does not have to be an amendment.

The officials hopefully will be joining us tomorrow also, so if I see that there's going to be an awful lot of debate.... I think we should move as expeditiously as possible to deal with as many clauses as we possibly can, leaving perhaps those clauses that will either have a lot of debate or amendments to later. Anyway, let's see how we get through.

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Colleagues, are there any questions on clause 2? I'll do it informally, rather than take it.... It's not going to be by time allocation.

Yes, Rosaline?

Ms. Rosaline Frith (Director General, Integration, Department of Citizenship and Immigration): Mr. Chairman, several issues were raised recently regarding the bill, and with your permission I've asked Norman to prepare some clarification on those issues. I wonder if before we start going through clause by clause, it might be useful for the committee to have Norman speak to them.

The Chair: Well, yes, I would hope so, but I'm just wondering whether or not we might take the opportunity to do it when we arrive at the particular clauses. Or is this of a general nature?

Ms. Rosaline Frith: I think it would just add to the clarification of—

The Chair: Okay. That's perfectly fine.

Mr. Sabourin, go ahead.

Mr. Steve Mahoney (Mississauga West, Lib.): Do we have it in writing?

The Chair: Is there a document that...?

Mr. Norman Sabourin (Registrar of Citizenship, Department of Citizenship and Immigration): Thank you, Chairman. With your permission, my intent would be to speak on four issues that have been discussed recently in the hope that I can bring clarity to the four issues and facilitate the deliberation of this committee. My presentation is approximately 10 to 12 minutes, and I think the four issues are all of significant import.

The Chair: I think I gave the officials notice that there were a number of issues we've heard, and there has been some discussion that it would be helpful to the committee to get a report from the officials as to the rationale of what's in the bill.

So from a general standpoint, yes, go ahead. But we may, when we get to that specific clause, have more in-depth questions for you. I'd rather not get into a question and answer right at the beginning to deal with them specifically. But from a general overview, yes, go ahead, Mr. Sabourin.

Mr. Norman Sabourin: Thank you, Mr. Chairman.

The four issues that I want to address today cover several clauses of the bill. Therefore I think the clarification I bring will be helpful to the discussions. The four issues are residence, international adoption, loss of citizenship, and transition provisions.

Beginning with residence, we know the current legislation does not define residence and that persons who are absent from Canada can sometimes count that time as residence in Canada for citizenship purposes. But I think what has perhaps not been made clear to this committee is that under the current legislation, applicants must nonetheless provide us with evidence of where they live, whether they live in Canada or abroad.

Citizenship officials have developed a lot of expertise over the years in assessing this type of evidence, be it passports, school records, utility bills, income tax statements, and so on. You are aware that we have a national quality assurance program in place for citizenship, and it does show that there are very few applicants who do not disclose all their absences from Canada.

Very recently, in a quality assurance monitoring process, we interviewed personally 553 applicants for a thorough review of the evidence on their absences from Canada, and there were only seven applicants out of that total—that's fewer than 2%—who were found to have fewer than 1,095 days present in Canada. That kind of feedback has allowed us to develop a real sense of the quality of the information provided by clients. Generally, I think we can tell when clients lie to us.

Now, suggestions have been made that this is not good enough, that we should have better ways to monitor absences from Canada. We seriously looked at how this could be done, and it must be made very clear that the only way to have certainty about a person's absences from Canada would be to institute rigorous border controls. This is not impossible. It's the practice in Australia and some other countries. Australia requires each and every person who comes to Australia to either have proof of Australian citizenship or have a valid passport and visa to enter the country. Every person who enters Australia must be recorded with their visa number in a national database, and the exact same procedure has to be followed for every person who leaves Australia.

We could certainly do that in Canada. We could institute a system of requiring visas for everybody coming to Canada.

I think Australia is a good example, because they have legislation in place for citizenship and immigration that is very similar to our legislation. But geographically they are very different from Canada.

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Here we have the longest undefended border in the world, and there are some 220 million times that people cross that border between the U.S. and Canada. That would be 220 million times that an official at the border would have to verify a person's status, decide whether or not they were allowed to come into Canada, and record the information in a computer database. I think that would certainly be a radical shift in how we manage border crossings and it would certainly cause a lot of inconvenience to travellers.

As a last point on the issue of residence, we might well ask why physical presence should be a requirement at all for citizenship purposes. Very simply, Chairman, the view of the government is that it's the only way a person can learn how to be a citizen, what it means to be citizen. It's the only way to learn about the values we share in this country, and the identity we share as a nation. This is not something you learn when you're travelling abroad. It's not something you can learn by reading books. It's something you learn only by spending time here.

The Chair: By the way, colleagues, clause 2 and paragraph 6(1)(b) refer to that section Mr. Sabourin just talked about.

I will allow some quick clarifications and questions, but we'll probably do it at the clause stage.

Leon.

Mr. Leon E. Benoit (Lakeland, Canadian Alliance): Yes. I would be satisfied with that explanation if I could receive some information on this study you did—the 500 and some people, with seven who hadn't completed the amount of time required. I'd like some information as well on how many had reported accurately, and how many you found hadn't reported accurately but still met the requirement—just some background, of course. I know we don't want names, as there's a privacy thing. But if I could get that kind of information on that study, then I wouldn't push the issue any further.

Mr. Norman Sabourin: Chairman, could we provide to the committee by tomorrow morning the results of the quality assurance monitoring?

The Chair: Sure.

Mr. Leon Benoit: Thanks.

The Chair: Mr. Sabourin, on the adoption.

[Translation]

Mr. Norman Sabourin: Thank you, Mr. Chairman.

The international adoption issue is very important to the Canadian government. A child adopted abroad by a Canadian should have the same rights and privileges as a child born abroad to a Canadian woman or whose father is a Canadian. For the government, this is a question of principle, a question of fairness.

The purpose of Bill C-16 is to minimize as much as possible the distinctions between natural children and adopted children, while avoiding fraud or convenience adoptions.

The bill addresses our concerns, as well as the international community's concerns about adopted children. Canada is a signatory to the Hague Convention on International Adoption, whose main objective is the protection of adopted children.

Clause 8 of Bill C-16 reflects our intention to respect international laws as well as provincial jurisdictions on adoption. This is a very important element. The government has no intention of interfering in a provincial jurisdiction.

In fact, I cannot think of a single case where the department could reverse the decision of a province to approve or reject an adoption. It would simply not be possible under the law. But the information needed by the provinces to assess the validity of an adoption could be obtained under the law.

I am very proud to see that the department has acquired, over the years, a high level of expertise in preventing convenience adoptions. The provinces and territories which do not have a mechanism to verify overseas adoptions have always relied entirely on the expertise of Citizenship and Immigration Canada for this, and rightfully so I believe. Our visa officers abroad have developed genuine expertise on fraud issues, and genuine expertise to evaluate the compliance of adoptions with foreign and Canadian laws.

I think this expertise will enable us to quickly and efficiently grant citizenship to children adopted abroad while avoiding convenience adoptions.

I would like to address the issue of the best interest of the child, which was broadly debated recently and which is of primary interest to the provinces. The best interest of the child is a concept that was added to clause 8 by this committee during the clause-by-clause review last year.

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The best interest of the child is the legislative criterion that would enable us to obtain proof of the validity of an adoption when this proof is not available to the province. The best interest of the child is not a criterion designed to override provincial authorities or the expertise of social workers, but it will provide these experts with the proof they need to determine if an adoption is valid or not.

The provisions regarding the best interest of the child will also enable us to ensure that parents have been informed of the medical condition of a child, which is a major concern for the provinces.

One last thing about adoption, Mr. Chairman. I would like to point out that the department is working very closely with the provinces on the provisions and procedures the government will apply in this area. And as Ms. Caplan said here on March 29, regulations and final procedures will be developed with the provinces.

[English]

I'd like to turn now to the issue—

The Chair: Leon Benoit has a technical question.

Mr. Leon Benoit: Yes. It's on that issue, the best interests of the child. You've said you would never override the judgment of the province as to whether someone should be accepted for adoption. I can't see any reason that you couldn't just add that to paragraph 8(a), to specify that in no case can one override the judgment or decision of the province as to the acceptability of an adoption. That would clarify that.

Mr. Norman Sabourin: Mr. Chairman, we'll obviously have a chance to go over this in clause-by-clause review, but paragraph 8(c) is precisely intended for that purpose. We wanted to ensure that the adoption must be in conformity with the laws of the province. Obviously we could not say anything about the validity of an adoption that's recognized or not recognized by a province.

Mr. Leon Benoit: That's not quite the same thing, though, as having the approval of the province.

The Chair: We're getting into very specific things about the clause, just as an overview.

Bernard.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I agree with my Canadian Alliance colleague. I must say that if multilateral discussions were initiated with the provinces in the spring of 1999, there has never been bilateral work with Québec. Many times the Québec International Adoption Secretariat raised a number of issues which were never taken into account.

Mr. Chairman, the ministère de la Santé et des Services sociaux du Québec sent a memo to the members of the committee this very day, expressing concern about clause 8. I quote this memo, Mr. Chairman:

Yet, the federal bill says, notably in clause 8 (c), that the adoption... must comply with the laws of the adopter's place of residence.

Mr. Chairman, the department feels that:

This could mean that, for all parents living in Québec, the adoption procedure is not complete, and that the adoption is therefore not carried out in compliance with Québec laws as long as it is not effective.

Could the department's legal advisor indicate if this clause can, to some extent, lead to discrimination against parents living in Québec as opposed to parents living in another province?

[English]

The Chair: Bernard, I don't know if you could table that document with the committee so that we could all have it and perhaps pass it on to the administration so that they could more clearly view it. I'll have Mr. Sabourin answer you technically, but we're starting to get into the very specifics, which we could probably deal with at clause-by-clause. By the looks of it, if in fact more technical or legal advice is needed, we would hold that over until tomorrow, giving everybody an opportunity to look at it.

Mr. Sabourin.

Mr. Norman Sabourin: Thank you, chairman. I agree with you that we need to get into this in some detail, but as a general answer, I can certainly say....

[Translation]

I will answer in French as I feel more comfortable. We are aware of the decision recognition procedure in Québec. There are two distinct issues that must not be confused in Québec. The first issue is that of the validity of the adoption. The second issue is that of the recognition of the adoption decision.

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The adoption decision recognition does not address the validity of the adoption. It would certainly be possible for the department, in close co-operation with the government of Québec, to develop a procedure, regulations that would enable parents living in Québec to adopt a child abroad and bring him home to Canada as a citizen.

As for bilateral discussions, I must say that my deputy- minister recently wrote to his provincial counterpart to request information. Our officials are awaiting Québec's proposals on how they would prefer ensuring compliance with the Civil Code, notably as regards the recognition of the adoption decision, before jointly developing regulations with Québec officials.

[English]

The Chair: We're starting to enter into debate. On the revocation....

Mr. Norman Sabourin: Thank you, Chairman.

Many concerns were raised on the issue of loss of citizenship, and I hope a few points will be helpful to this committee.

The first point is the burden of proof. Revocation of citizenship is a very serious matter. While the standard of proof in revocation matters is that of a balance of probabilities, the Federal Court has said that the evidence in revocation cases must be scrutinized with greater care because of the serious allegations to be established by the proof that is offered. This standard of proof is what has been accepted in the Federal Court in all subsequent cases since then.

The second point is appeal rights. We've heard requests from many witnesses that revocation decisions of the Federal Court should be subject to appeal to the Federal Court of Appeal. With respect, Chairman, I believe this is based on a misunderstanding of the revocation process. I think it's helpful to explain the difference between judicial review and a hearing of the revocation facts by the Federal Court. To do that, I will tell you about the revocation process in reverse. I'll begin with the last steps and finish with the first step.

The last step in the revocation process is an order by the Governor in Council that says this person's citizenship is hereby revoked. But the Governor in Council, before making that order, before making a decision, is going to consider written representations from the individual. Those representations from the individuals could allege errors of law, errors of jurisdiction, errors of fact. Then, after the Governor in Council has considered these submissions and makes an order of revocation, that order is subject to judicial review by the Federal Court.

What does judicial review give to the individual? It provides an independent forum of review for these errors of law, for absence of jurisdiction, for other grounds. The Supreme Court has very clearly said in the past that the mere fact that a statutory power is vested in the Governor in Council does not mean it is beyond review.

Moving back in the process, because revocation is such a serious matter, the legislation says the minister is the one who makes the report to the Governor in Council to tell the Governor in Council that he or she thinks revocation should take place. This is such a serious business that before you do that, you're going to give a chance to the person to be heard on the facts by an independent forum, an independent tribunal, and you're going to wait for that independent tribunal to tell you if there's fraud or no fraud. That independent tribunal is the Federal Court.

When a matter is referred to the Federal Court for a hearing on the facts, a party to these proceedings can file motions on evidence, on the admissibility of the evidence, on the procedure to be followed. These motions can be appealed to the Federal Court of Appeal.

There are other safeguards in place, Chairman. If a revocation order is indeed finalized against a person, that person who has lost citizenship can benefit from the procedural reviews of the immigration process. In order to remain in Canada, they can ask for judicial review, they can ask for H and C consideration by the minister. With respect, I would say that if there is no appeal of the original finding of fact by the Federal Court, it would be unfair to say there is no opportunity for review by the person affected.

• 1600

If we ask ourselves what we would give to a person if we gave a person a right of appeal on the determination of facts, well, the Federal Court has twice ruled that under the charter there is no need for an appeal, per se. Although there has been leave sought to the Supreme Court on this issue, right now the situation is that the court believes an appeal is not necessary, per se.

Second, if we do give a right of appeal of the initial decision on the facts, we would be opening up the right of appeal not only to the individuals but also to the minister. I would ask the committee this question: Do we want an individual who has succeeded in convincing an impartial judge that he didn't commit fraud to then have to be tied up more years in a costly and lengthy appeal process so that the government might then try to convince another set of judges that in fact there was fraud?

I have a last point on the issue of revocation. I think it's an important point. I want to speak about the difference between natural-born citizens and naturalized citizens. There is no difference. In Canada a citizen is a citizen. But fraud is fraud.

If somebody born abroad lies to us about their entitlement to become a citizen and we discover this fact, it's fraud. If somebody is born to a Canadian parent abroad and they lie to us about their parentage, that's fraud. In both cases we should have a way to go back and make sure that we can address the fraud so that all citizens are treated in the same way.

[Translation]

On the issue of transition....

[English]

The Chair: Thank you, Mr. Sabourin. I think those clarifications on revocation, which might not have been known to some of us, especially the GIC...are appealable in terms of judicial review.

I just wanted that overview, because we'll get to it later.

That's clause 13, by the way, and clause 16 specifically as it deals with revocation.

A technical question, John?

Mr. John Bryden (Wentworth—Burlington, Lib.): Yes, Mr. Chairman.

Let me ask you about “fraud is fraud”. Should fraud be considered fraud indefinitely?

Mr. Norman Sabourin: In my view, yes. If somebody lies about having been born to a Canadian parent in 1947 and we discover that was a fraud, they are not a citizen by law. I think the same rules should apply for somebody who became a citizen through naturalization in 1947.

Mr. John Bryden: A little further on—

The Chair: You're getting into the details.

Mr. John Bryden: Okay. Can you file that, then? I'll follow up on that question a little later when we go clause by clause.

The Chair: Leon, a technical clarification?

Mr. Leon Benoit: Yes.

As I heard you go through the process, I heard you say there is a review granted to the Federal Court. But in a review to the Federal Court there's no allowance for new information to come out, is there? It's just a review of the information taken in the initial hearing. Is that not correct?

Mr. Norman Sabourin: The legal advisers could probably get into a lot of technicalities on this, but generally I think I would agree with you. I would have to say, however, that in an appeal of an initial decision, the same thing takes place. There is not an opportunity to review the facts themselves; there is just an opportunity to review issues of law.

Mr. Leon Benoit: If it's an appeal to the Supreme Court, as an example?

Mr. Norman Sabourin: Yes.

Mr. Leon Benoit: There's new evidence allowed to come in under that in an appeal to the Supreme Court.

The Chair: I don't think so.

Mr. Norman Sabourin: Perhaps our legal adviser can address that.

A voice: [Inaudible—Editor].

The Chair: No, I'm sorry, the audience can't answer. I know we have an awful lot of experts out there, and I like to see interactive stuff when an audience wants to participate in our committee deliberations, but unfortunately I can't allow that.

Go ahead.

Mr. Eric Stevens (Legal Counsel, Legal Services, Department of Citizenship and Immigration): On a point of clarification, you will find certain appeals whereby new evidence could be allowed in, although the normal course of events is that they don't allow for new evidence.

It's an exceptional provision that allows for new evidence in, whether it be an appeal or a judicial review.

The Chair: Pat.

Mr. Pat Martin (Winnipeg Centre, NDP): I have one quick question.

What is the rationale for having the Governor in Council making the revocation order, and why doesn't revocation simply flow from having fraud being proven at the Federal Court? When this system was put in place, what was the reasoning behind having what seems to be an extra step in the revocation process?

• 1605

Mr. Norman Sabourin: It's a difficult question. I think much of it revolves around the history of such provisions. Historically in common law traditions, and certainly in Great Britain, Australia, and Canada, the granting of citizenship was always seen as being at the discretion of the crown, as was the taking away of it.

I think we've moved much away from that by trying to codify the practices we now have. Whether it should be Governor in Council or another body is probably a valid question.

The Chair: And that's for clause-by-clause debate.

Mr. Pat Martin: I snuck it in anyway.

The Chair: Last point, Mr. Sabourin.

[Translation]

Mr. Norman Sabourin: Thank you, Mr. Chairman.

I would like to address a very important issue that was raised regarding transition. The provisions of clause 55 are not prejudicial to people who have not accumulated three years of physical presence in Canada. As for all the other provisions, they would only be prejudicial to a person who committed a crime. Any person who committed a crime will be covered under the new restrictions. I do not think we want to make it easier to become a citizen for a person who committed a serious crime in Canada or abroad.

As for residence cases, Ms. Caplan indicated that the department will implement measures for processing applications involving residence issues before the law becomes effective. According to statistics, approximately 8,000 cases could be affected, that is 8,000 cases, at all times, where a person did not accumulate the 1,095 days required.

When we get to clause 55, I will be happy to provide examples of these cases.

[English]

Clause 57, also a transition provision, is a new provision that did not appear in Bill C-63. Now, while it's not the result of a formal recommendation of this committee, it nonetheless reflects the concerns expressed by several members of this committee after hearing from witnesses, including the Mennonite Central Committee.

We've worked hard to develop proposals that would be fair and equitable for all persons born between 1947 and 1977 who have yet to exercise a right to become citizens of Canada. We've worked in close cooperation with the MCC, and I'm pleased to say that the group fully supports the proposals we're making in clause 57.

There may be an impression that this is a special provision for Mennonites. Absolutely not; we're speaking about anyone born between 1947 and 1977 who could have had a claim to citizenship but who never came forward. The proposed three-year window, along with the publicity measures we instituted, will give everyone a chance to come forward.

Those are my comments on the four issues, Chairman.

The Chair: Great. Thank you very much. I think they've been most helpful. That gives us the overview until such time as we get to the clauses.

We'll proceed now to clause 2. Any questions?

(On clause 2—Definitions)

Mr. Rob Anders (Calgary West, Canadian Alliance): I want to comment on subparagraph 2(2)(c)(i). This is with regard to the aspect of physical presence in the country.

I don't have an amendment to bring up at this time. I just wanted to address the whole idea that we have a mention here in the bill of physical presence, and yet I've cited examples I've come across in my own constituency where a physical presence has been abrogated by somebody leaving across unmanned border crossings to the United States and then going ahead and accessing claims, whether they be Seattle or other ports of exit from the U.S., to go back to their country of origin to continue to work and earn money and not pay Canadian taxes.

Because the government doesn't have a way to track that, and is not tracking that, those people are evading Canadian taxes and yet still qualifying for physical presence in the country.

The Chair: I'm not sure whether or not it would come under that particular clause. It just says “physically present”. They could be somewhere else.

If I have too many questions, I'll just hold clause 2 in abeyance until later.

John, for now.

Mr. John Bryden: Well, I might cause a little bit of a problem here, because I have some difficulty with paragraph 2(2)(b), which is new, as it pertains to the Jay Treaty and the Indian Act.

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The Jay Treaty, if I remember my history correctly, is about 200 years old. If I read this clause correctly, what you're saying here is that by virtue of being an Indian in the United States, you automatically have permanent residency status in Canada. I have a little difficulty with that, because I'm not prepared to say that somebody who's born and brought up in the United States appreciates Canadian values, such that they should automatically jump the whole stage of permanent residency in applying for citizenship. This is something that's come out of the blue and should have required some debate before this committee.

The Chair: Mr. Sabourin, do you have an answer to that one, or should we give you an opportunity to come back, having been given notice of that sort of question?

Mr. Norman Sabourin: Mr. Chairman, I have an answer for everything.

The Chair: I'm impressed. Let's see how you do with the answer.

Mr. Norman Sabourin: Paragraph 2(2)(b) is merely a legal fiction to allow Indians—who are registered under Canadian law under the Indian Act and who have certain privileges under the Immigration Act, but who are not permanent residents under the Immigration Act—to count their time in Canada as if they were permanent residents. They still have to spend their time in Canada in order to become citizens. That goes without saying.

The Chair: Are you satisfied, John, or do you want think about it?

Mr. John Bryden: This has taken me by surprise. I need to look at it a little more carefully.

(Clause 2 allowed to stand)

(On clause 3—Persons who are citizens)

The Chair: On clause 3, you will note that the government has amendment G-1 on that. Parliamentary Secretary, are you proposing to move this technical amendment in the French version? You have it before you. It states:

That Bill C-16 in clause 3 be amended by replacing, in the French version, line 30 on page 2 with the following: la présente loi.

(Amendment agreed to)

(Clause 3 as amended agreed to)

(On clause 4—Acquisition at birth)

The Chair: On clause 4, you will note that there is a government amendment. Andrew.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Government amendment G-2 proposes that Bill C-16 in clause 4 be amended by replacing line 29 on page 2 with the following:

if, after the coming into force of this section

Of course it repeats that in French.

The Chair: Can you just tell us the significance of that?

Mr. Andrew Telegdi: Basically, it's a technical amendment.

Mr. John McKay (Scarborough East, Lib.): We know that. What's its significance?

The Chair: Mr. Sabourin, can you help Andrew out?

Mr. Andrew Telegdi: It will help clarify who will become Canadian at birth. Right now, subclause 4(1) of the bill outlines the general rule that a person born in Canada will be a Canadian at birth, except for children of foreign diplomats. As well, anyone born outside Canada of a Canadian parent will become a citizen at birth. Anyone who is already a citizen when the law comes into force continues to be a citizen.

To avoid legal confusion, it must be clear that this clause applies only to people born after Bill C-16 becomes law. We don't want someone who was born many years ago and has no right to citizenship to say they are a citizen under this provision.

The Chair: I just like to see you work for the big money you earn as parliamentary secretary.

(Amendment agreed to on division)

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(Clause 4 as amended agreed to on division)

(Clause 5 agreed to on division)

(On clause 6—Adults)

The Chair: Now we're on clause 6. There's an amendment by Mr. Martin.

Mr. Pat Martin: I'm sorry for the late introduction.

The Chair: Can you read it for us? I think it has been distributed to everybody. Perhaps you can take us through it.

Mr. Pat Martin: Yes. We seek to change what Bill C-16 says, that you must be physically present for 1,095 days within the last six years. This amendment would change that, so you would have to be physically present for 1,095 days, period. It would eliminate the six-year part of the equation.

I think from Bill C-63 to Bill C-16 we went from five years to six years. This amendment seeks to eliminate that aspect of it altogether.

The Chair: Questions. Mr. Mahoney, Mr. McKay.

Mr. Steve Mahoney: I don't have a question. I want to speak against the motion because I think it shows absolutely no commitment to Canada. It could be 1,095 days out of 25 or 30 years, and I don't think that's appropriate. I thought the compromise by the committee was to make it three out of six, in relation to a lot of the folks who need to travel abroad, for whatever reason. I think it has to stay, or it just guts that section.

The Chair: John.

Mr. John McKay: Mr. Mahoney has spoken for me. I won't let it happen again.

The Chair: Are there any other speakers on the amendment? The amendment's been put by Mr. Martin.

Mr. Anders.

Mr. Rob Anders: I'd just like to indicate that there could be legal implications in making that change. If somebody were challenged, with regard to the status of their citizenship, having spent ten years outside of the country, they could potentially argue that they were going to spend the next three of the thirteen years in the country, so you'd open this huge quandary. I wonder if Mr. Martin is cognizant of that.

Mr. Pat Martin: I probably have more stuff than you do, Rob.

A voice: I'm definitely opposing it now.

(Amendment negatived)

The Chair: Are there any further questions? Rob.

Mr. Rob Anders: Once again, I question paragraph 6(1)(b), where it deals with the 1,095 days. I don't think we have an effective check right now. People can go across unmanned border posts and not have that tracked in any way. They can go and earn income outside of the country and evade Canadian taxes.

Paragraph 6(1)(c) deals with an adequate knowledge of one of the official languages of Canada. I assume that was in the previous law. Yet we have situations in the city of Calgary where people are working, and I guess they have their landed immigrant or citizenship status, but they don't have knowledge of one of the official languages.

I'm wondering what type of provision there has been in the past to check that, with regard to the provision for citizenship.

The Chair: Can we have a response to that, Mr. Sabourin?

Mr. Norman Sabourin: If I understand the question, it's basically how we assess the language capability of applicants. Today, decisions on entitlement to citizenship are made by the citizenship judges.

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For people who do not meet the language requirement based on questions developed by the minister but administered so that the citizenship judge can make a decision, these people who do not meet that requirement can ask for a waiver of the requirement from the minister. On compassionate grounds, the minister can grant a waiver for a person for a medical reason or because of age or for special circumstances.

There is no change in that process in terms of the tools for assessing language and for the waiver issue. Of course, what will change is the fact that the assessment would be done by officials rather than by citizenship judges.

The Chair: Is there further debate? Rob.

Mr. Rob Anders: Mr. Chairman, I understand that the minister may have some discretion with regard to physical infirmities and that type of thing, but the situation I think of is the one where we had an alderman on the city council in Calgary who was raising some objections with regard to people, say, for example, obtaining taxi licences in the city of Calgary and who clearly didn't have the ability to communicate in either of the official languages. If one can operate as a taxi driver, I don't imagine that one would have a waiver from the minister for a physical infirmity.

Mr. Norman Sabourin: I think, Chairman, that the question is what is the level of language that should be met by a new citizen? This is a question that the department has grappled with extensively. Many views have been expressed on this issue, including some by members of this committee. One can ask, do you have to be able to carry on a conversation with your member of Parliament in order to be a good citizen?

I think that the balance we've tried to achieve in setting the language level is a balance whereby we want a new citizen to be able to get by in day-to-day life, in day-to-day situations, to be able to ask for help, and to be able to do those things that a citizen would do in participating in activities in his or her community. But that does not mean that it has to be a very high level of knowledge of the language.

The last point is that perhaps the people who have been referred to.... Are they citizens or are they permanent residents? That would be a question.

The Chair: Whether or not they should have a taxi licence is not for us to decide, but is perhaps for the City of Vancouver or for anybody else to decide.

I think he's explained it: permanent resident or whatever.

Rob.

Mr. Rob Anders: Mr. Chairman, it's just that the ramifications of that are, of course, that the City of Calgary is the one that has to pick up the administrative burden—

The Chair: No.

Mr. Rob Anders: —with regard to the decisions that are made by the federal government in this regard.

The Chair: We're talking about citizenship at this point, not—

Mr. Rob Anders: Yes, I know.

The Chair: —landed immigrants. This is citizenship. This is a citizenship bill. You would have to stay here at least 1,095 days out of six years before you could even access the citizenship. We're not talking about immigration; that comes in May, in June.

Bernard.

[Translation]

Mr. Bernard Bigras: I understand that this is not a bill on immigration but a bill on citizenship. When evaluating proficiency in one of the official languages of Canada, can the regional criterion have an impact, for example, when a Francophone who moves to Newfoundland, or to another province where English is highly predominant, may not be able to interact with his community? I know that for certain immigrant selection criteria, within the Citizenship and Immigration Canada selection grid, we have seen this factor. I understand that this is a citizenship law, but does sufficient knowledge of one of the official languages of Canada also include a regional factor?

Mr. Norman Sabourin: The answer is no. Knowledge of one of the official languages is enough, no matter where the applicant lives in Canada.

Mr. Bernard Bigras: All right. Has there not been a precedent in the past?

Mr. Norman Sabourin: None.

Mr. Bernard Bigras: None.

[English]

The Chair: I see no further debate on clause 6.

(Clause 6 agreed to on division)

(On clause 7—Minors)

The Chair: Debate on clause 7...? Rob.

Mr. Rob Anders: I recognize that subclause 6(2) and clause 7 both deal with the issue of the discretion of the minister. I'm jumping ahead slightly to clause 9, which also deals with override by the Governor in Council. I recognize that there are circumstances wherein one would want to do this, but I'm just thinking today of questions that have come up with regard to the Canada Customs and Revenue Agency about some of the overrides that have happened there and the problems that have resulted from it.

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I just think that sometimes we may be opening ourselves up to loopholes there, which can potentially be abused depending on which government or which minister.... I wish we had some sort of—

The Chair: Okay.

Mr. Sabourin, could you just give us a tangible example of the use of that particular provision? Specifically it's for minors, for the child of a citizen.

Mr. Norman Sabourin: I'm sorry, Chairman. Are we back on clause 6?

The Chair: We're at clause 7.

Mr. Norman Sabourin: There is no discretion in clause 7. Clause 7 tells the minister that he or she must grant citizenship to a minor child if the child is a permanent resident and one parent is a citizen. There is no discretion involved.

The Chair: The word is “shall”, right? So there is no discretion. It says “shall”.

Mr. Norman Sabourin: Correct.

(Clause 7 agreed to)

(On clause 8—Adoptees)

The Chair: On clause 8, adoption, are we going to have a lot of debate on adoption? Or is everybody satisfied with the overview that was provided, even though there was a technical...? I think Mr. Bigras provided us with a letter from the Government of Quebec which you may want to review. I think we should let this clause stand for—

Mr. Leon Benoit: Let's deal with them as we get to them, Mr. Chairman. That's what I suggest.

The Chair: Well, Leon, I'm the chair, and I'd like to get to as many as possible today, leaving as few as possible for tomorrow. If one is going to cause an awful lot of debate, it might cause us not to be able to finish tomorrow, so the sooner we move along.... On the ones where there is disagreement, I think we can get to them again today—such as this one—but that's why I asked if there is going to be an awful lot of debate on clause 8.

Are you in a position, Mr. Sabourin, to answer the letter Mr. Bigras provided, which you might have seen? Or do you just want to take the time to deal with that a little later?

Mr. Norman Sabourin: Chairman, I would ask my colleague, Ms. Harvey, to answer that question.

Theresa, are you prepared to do that?

Ms. Theresa Harvey (Deputy Director, Social Policy and Programs, Selection Branch, Department of Citizenship and Immigration): I would just like to say with respect to this issue of discussions with Quebec that there was a meeting with Quebec officials in February to discuss some of the concerns about the recognition of the adoption in Quebec.

We had a meeting today with most of the provinces and territories. This issue was raised with us. We have committed to scheduling a bilateral meeting with Quebec officials next week to discuss the issue further.

We are committed to ensuring that children destined to Quebec are not discriminated against in any way. We are very open and we would like to offer some options at that meeting as to how we might deal with the situation. We are not in the position to provide specifics at this point; we're still addressing it, but we hope we can resolve it in the near future.

Mr. Leon Benoit: Mr. Chair, with that answer, how are we going to deal with this within the next couple of weeks? We're waiting for an agreement to be reached. How can we possibly pass this here?

The Chair: Mr. Sabourin.

Mr. Norman Sabourin: Chairman, I think there's a difference between the principles in clause 8 and the legislation. On the one hand, what it is we're trying to achieve is to make sure that adopted children can get citizenship as quickly as possible so that they're not discriminated against, and on the other hand, we're trying to achieve what the procedure will be that we put in place to do it.

The procedure we're going to put in place to do it is that we want to make sure, through the development of our regulations and through the development of the policies, that we have the support and the buy-in from each and every province, because adoption is a provincial responsibility.

I think the two issues are separate: the principle of clause 8 and the process that will be followed.

The Chair: Leon.

Mr. Leon Benoit: If we had clear definition or a clear statement in clause 8 that the federal government wouldn't override the ruling of the province in that issue, then I would say yes, but we don't have that.

The Chair: Bernard.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, can we at least agree that it is highly possible that, following next week's meetings, there could very well be a modification to clause 8?

• 1630

Consequently, I must inform you right now that I cannot, as a member of the committee, adopt this clause as it is written. I believe we should wait for the results of the negotiations and meetings, because there could be modifications. I am not prepared to immediately adopt this clause, before the negotiations are complete.

[English]

The Chair: First of all, Mr. Sabourin made it very clear that clause 8 is the statement of principle of how we will deal with adoption. The mechanics, along with a whole bunch of things, are in fact subject to bilateral negotiations and consultation with the provinces. My only fear is if we waited for all the negotiations with the province to finish, we wouldn't pass this bill for God knows how long.

I would suggest to you that if things necessitate an amendment after we deal with it, there is, as you know, the possibility of introducing such amendments, perhaps through the Senate or at some other point. We're dealing more with the mechanics than the general principles involved.

Bernard.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, forgive me, but as I indicated earlier, there have already been discussions with the provinces since the spring of 1999. It is not normal that the government present a bill today for which there might be other negotiations. In fact, I think that if the government could not agree with the provinces on this clause, there is no rush today. I think we should wait until the negotiations are over, and if necessary, we will amend this clause. But let's allow the negotiations to continue.

I am not prepared to adopt this clause today because there will be negotiations between governments. It would be very inappropriate for our committee to decide to adopt this clause today. Let governments talk first.

[English]

The Chair: Leon.

Mr. Leon Benoit: I fully agree with the Bloc member in this case. We have amendments we're going to bring forth in the House, but I do have a question on paragraph 8(b), the genuine relationship of a parent and a child. I don't remember if I've asked you this before. If I did, I don't think I got quite a clear enough answer. I want to know how that is defined and if there is a clear definition, and if so, where is it in law?

The Chair: What do you want, a definition of “genuine”?

Mr. Leon Benoit: I want a definition of “a genuine relationship of parent and child”.

The Chair: Okay, well, I want to be very specific. You're asking whether or not there's a definition for “genuine relationship”?

Mr. Leon Benoit: Of a parent and a child.

The Chair: You mean you don't have any idea what that means? Okay.

Mr. Leon Benoit: The genuine relationship of a parent and a child.

The Chair: Well, that's what I mean. You don't have any idea what “genuine relationship” means?

Mr. Leon Benoit: I want to know how it's defined.

The Chair: Okay.

Do we have a definition in the act?

Ms. Theresa Harvey: The definition would be dealt with through regulatory provisions, but the concept of a genuine parent-child relationship is one that would require a permanent severance of the relationship with the biological parent. That's the principle.

Mr. Leon Benoit: And only that permanent severance of a relationship with the biological parent?

Ms. Theresa Harvey: Essentially, yes.

Mr. Leon Benoit: Essentially?

Ms. Theresa Harvey: Okay, yes.

Mr. Leon Benoit: Okay. Thank you.

The Chair: I see no further debate. The motion has been put on clause 8. I call the vote.

Mr. Leon Benoit: Recorded vote again.

(Clause 8 agreed to: yeas 9; nays 4)

(On clause 9—Direction by Governor in Council)

The Chair: Is there debate on clause 9?

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Mr. Rob Anders: Yes, Mr. Chairman. Once again it deals with this whole subject of the Governor in Council, and it's another one of these questions of the ability to override. Once again I wish we had some more guidelines on this, because of course we've seen in HRDC and the Canada Customs and Revenue Agency that some of these overrides and ministerial discretions and whatnot have led to some problems for the government. And of course we all want to make sure the government avoids as many problems as possible.

The Chair: The government is always accountable for its actions. At the end of the day they always are, unlike some others.

Mr. Steve Mahoney: Even if it's fabricated.

Voices: Oh, oh!

Mr. Rob Anders: We try to keep them that way, Mr. Chair.

The Chair: Okay. Clause 9 has been moved. Is there any support?

An hon. member: That's a good question.

Voices: Oh, oh!

(Clause 9 agreed to on division)

(Clause 10 agreed to on division)

(On clause 11—Statelessness—bloodline connection)

The Chair: On clause 11 there's a government amendment, G-3.

Andrew.

Mr. Andrew Telegdi: This one relates to page 6, starting off at paragraph 11(e). It's inserting “has always been stateless”. I'll give you a short version on the technical amendment and I can give you a long version.

The Chair: Short one.

Mr. Andrew Telegdi: Basically it mirrors the words of the International Convention on the Reduction of Statelessness, to which we are a signatory as a country. Actually it was mentioned by a fair number of groups coming through as witnesses, both on Bill C-63 and on Bill C-16.

The Chair: The amendment has been put. Is there any debate on the amendment? No? I call the question.

(Amendment agreed to—See Minutes of Proceedings)

Mr. Rob Anders: Just out of curiosity, paragraph 11(f) talks about somebody convicted of an offence against national security, and I'm wondering how stringent that particular definition is. It's a curiosity question.

The Chair: Okay.

Mr. Sabourin.

Mr. Norman Sabourin: What we've done in this provision is simply repeat the terms of the International Convention on the Reduction of Statelessness, which has those exact words in it. If it is interpreted in Canada, we would defer to the Canadian Security Intelligence Service Act in trying to assess whether or not a person has committed some kind of infraction under that legislation.

The Chair: Where could we find those offences? Are they somewhere?

Mr. Norman Sabourin: I believe they're in the CSIS Act.

Mr. Eric Stevens: If you went through the Criminal Code, you wouldn't find something that says “This is a group of offences against national security.” So what you'd have to do is, in an individual case, you'd have to make an assessment with advice from the experts—and presumably that would come from CSIS and people like that—as to whether or not the Criminal Code offence falls within the ambit of national security.

Mr. Rob Anders: Can you point to examples of offences that were determined, either by CSIS or by whoever else, to be actual violations, offences against national security? Has Canada ever used this?

Mr. Eric Stevens: I'm not aware of any cases in point.

Mr. Rob Anders: Can you give me some examples from other countries then of how it would apply to the International Convention on the Reduction of Statelessness?

Mr. Eric Stevens: Hypothetically, if a person were selling trade secrets that affected Canada's national interest, that would seem to be something that would fall within the ambit of this.

Mr. Rob Anders: Do CANDU nuclear reactors count?

The Chair: You mean the legitimate sale of CANDU?

Mr. Rob Anders: With taxpayer-subsidized money, yes.

The Chair: That's not the point. Thank you.

(Clause 11 as amended agreed to)

• 1640

(Clause 12 agreed to)

(On clause 13—General Principle)

Mr. Leon Benoit: In clause 13, it says “citizenship is lost in accordance with this Part”. With specifically what in this part? How is that determined?

The Chair: These are all part of the revocation ones, clauses 13, 14, and 15, I believe.

Mr. Norman Sabourin: Part 2 means clauses 13 to 18 of the bill.

Mr. Leon Benoit: So it's the full part 2 of the bill.

The Chair: Yes.

(Clause 13 agreed to)

(On clause 14—Automatic Loss)

The Chair: John, on clause 14.

Mr. John Bryden: In terms of tidiness, Mr. Chairman, I can't understand all the commas in this particular clause. There are commas put in the most bizarre positions. Anyone who is interested in the language at all has to wonder what's happening. You can see what happens: “A person who acquires citizenship because the person was born, outside Canada, of a parent having, at the time of the person's birth,” and so it goes. I counted about seven unnecessary commas, just for the record.

The Chair: Thank you for that, John.

Mr. Steve Mahoney: I move that we delete the commas.

(Clause 14 agreed to)

(Clause 15 agreed to on division)

(On clause 16—Revocation order)

The Chair: On clause 16 there's an amendment by Mr. Martin. Do you want to introduce it, Pat?

Mr. Pat Martin: I think you're going to like this one. This is to add the word “knowingly” in line 19 to be consistent with everywhere else where they talk about “concealing material circumstances”. In every other case it has the word “knowingly” in front of it, so I believe to be constant we should have the word “knowingly” in front of it this time when it's used in line 19.

The Chair: First of all, can I just ask for an explanation from the administration on what their feelings would be with regard to adding the word “knowingly”? I think Pat's point is that it appears sometimes and not all the time. What would be the consequences of making sure it was there all the time?

Mr. Norman Sabourin: Chairman, on these issues, we received advice from the drafters at the Department of Justice, who wrote the thing and who seem to have a lot of knowledge about what gets interpreted in what way. Their view was that the word was not necessary. We specifically discussed that point with them. I'm not sure I can go on with more of an explanation than that.

The Chair: Rob.

Mr. Rob Anders: In regard to Mr. Martin's comment, my reading of it would be that the word “knowingly” opens this up to a lot of discretion. I think Mr. Limoges actually made a side comment to this effect in terms of proving it. Mr. Martin wants the word “knowingly” in there in reference to somebody applying for citizenship. Of course, that opens the whole thing up to debate. Is somebody knowingly concealing the information? It puts the burden of proof on the government to a greater extent because it goes from the point of just proving that they were concealing the information to proving whether or not they knowingly concealed the information.

I would like to go so far as to say that while Mr. Martin would like to add the word “knowingly” to open it up to greater debate and discretion and potentially abuse and to put a greater burden of proof upon the government with inserting the word “knowingly” before “citizenship”, I read on further that I think we should actually revoke the word “knowingly” where we have it with regard to that aspect of it that deals with representation regarding permanent residence. Once again it puts a huge burden upon the government to provide proof and it has a greater burden of proof with the concealment of information with regard to permanent residence.

I don't think we should have a greater burden of proof upon the government with regard to either permanent residence or citizenship.

The Chair: That's why I'm trying to get a technical view. If you look at lines 23 and throughout, we use the words “knowingly concealing”. We do that in line 23 and where Pat wants to put it is in line 19. That's why I want to make sure whether it's a mistake in the bill or through inadvertence or whether or not that word will make a difference. Can I have the administration....

• 1645

Mr. Norman Sabourin: Chairman, the advice we've had is that in particular since subclause 16(3) says “For the purposes of this section”, which is all the subsections, and subclause 16(1) is the enabling section and it has the word “knowingly”, we don't need the word “knowingly”. I don't see a problem with adding it if this committee deems it necessary.

The Chair: Steve.

Mr. Steve Mahoney: Mr. Chairman, the argument I just heard for taking “knowingly” out is almost contrary to every other argument I've heard about concerns about the minister having too much discretion. There has to be some burden of proof that the individual knowingly, intentionally withheld information that would disqualify them from being a citizen. Revocation is a very serious matter. I think the word “knowingly” should be put back in. I would agree with the amendment.

The Chair: John.

Mr. John Bryden: My observation is that it's pretty hard to conceal things without knowing that you're doing it.

The Chair: Thank you for that, John.

Voices: Oh, oh!

Mr. Rob Anders: I'd just like to point out that I think the difference here between using the word “knowingly” with regard to citizenship and using the word “knowingly” with regard to permanent residence is that one usually becomes a resident. It's much easier to become a resident than it is to move ahead to full citizenship. I know that was the case with my mother when she came to Canada.

I think if we open up this burden of proof upon the government in both cases, especially with regard to permanent residence, it makes it that much easier to abuse it. Somebody could say they didn't knowingly conceal that information. As a result, it puts.... I thought the whole purpose to this thing was to tighten up the loopholes.

The Chair: Well, putting in “knowingly” probably does tighten up the loopholes. I was trying to get a clarification as to whether or not we'll find ourselves in a problem legally. I heard the administration say no.

Leon.

Mr. Leon Benoit: Mr. Sabourin, you're saying it really wouldn't make any difference whether it's in there or not. Is that a fair interpretation of what you said?

Mr. Norman Sabourin: I think that's fair. It's primarily because of the words for the purposes of this section, which really talks about subclause 16(1).

Mr. Leon Benoit: So there's no difference either way?

Mr. Norman Sabourin: No.

Mr. Leon Benoit: Okay.

The Chair: On that basis, the amendment has been put. All in favour of the amendment.

Some hon. members: Agreed.

Mr. John Bryden: I disagree with that. I'd like a roll call.

The Chair: There's only one objection.

An hon. member: Well, there's my objection.

The Chair: Oh, two objections, then.

Mr. Rob Anders: There's probably Leon's objection.

Mr. Steve Mahoney: Leon agreed with this, which is making me think I might be wrong.

Mr. Leon Benoit: I didn't agree with it. I'm saying why put it in if it isn't going to change anything?

Mr. Rob Anders: If it doesn't mean anything, take another vote.

A voice: What is even more extraordinary is that Leon agreed with—

(Amendment agreed to)

(Clause 16 as amended agreed to on division)

(On clause 17—Notice of decision)

The Chair: Is there debate on clause 17? John.

Mr. John Bryden: Mr. Chairman, try as I might, in reading paragraph 17(1)(b), I can't follow the syntax. I can't understand the grammar and the use of words here. As far as I can see, in paragraph 17(1)(b) we have two verbs. If you read the sentence without the subordinate clause, what you read is “if the person does...request the Minister to refer the matter, the Federal Court—Trial Division determines”. This is language used in ways I cannot fathom. I cannot fathom the meaning of this particular section.

The Chair: Pat, do you want to take us through your amendment on clause 17? There is an amendment, by the way.

Mr. Pat Martin: The amendment is to line 38. I guess I can tell you that the purpose is to allow the appeal system to go to the Federal Court of Appeal or the Supreme Court of Canada. Currently the clause simply reads that the matter can go to the Federal Court Trial Division. This would make it “Federal Court—Trial Division or the Federal Court of Appeal or the Supreme Court of Canada, in the event of an appeal, determines” etc.

The Chair: Can we get a technical explanation from the administration as to whether or not that's possible? Mr. Sabourin.

• 1650

Mr. Norman Sabourin: If I understand correctly, what is being suggested is that subclause 17(3) be abolished.

I would simply refer to my opening remarks on the process of the referral to the Federal Court on a question of fact versus the judicial review on the question of law and the decision of the Governor in Council under clause 16. So if we agree to the principle that the Federal Court be asked to make an independent review of the facts and give its opinion on the facts and report those facts to the minister before she, in turn, decides whether she makes a report to the Governor in Council, the question of appeal becomes a very strange creature, indeed.

The Chair: Pat, were you here for that overview on what's appealable and what's not?

Mr. Pat Martin: Yes, I heard the opening remarks.

The Chair: I have a technical question, because I want to find out from those who know the Federal Court system whether or not somebody can refer it, as the amendment would suggest, immediately to the Federal Court of Appeal or the Supreme Court of Canada without first going to the first level, which I understand is the trial division.

Is that your intent, Pat, that it would go to the trial division, and then you want appeal mechanisms all the way through the appeal to the Supreme Court?

Mr. Pat Martin: Yes—by leave, of course.

The Chair: By leave.

Mr. Pat Martin: That's appeal by leave, as is the case in that level of the courts.

Taking it further, it's sort of a basic Canadian fairness issue. Most people want to see full access to appeal at every stage. I think most Canadians would actually trade the stage of the Governor in Council for a more advanced appeals system. So if you're worried about bogging down the system too much by having delays, I would argue that it's the Governor-in-Council step that bogs the whole process down. It should go to the Federal Court, and if the Federal Court finds fraud, then there should be the automatic revocation of your citizenship, subject to appeal at the other levels of court. That's what we're envisioning here, and that's the direction in which we're going with these amendments.

The Chair: John McKay.

Mr. John McKay: I'm a bit confused by this amendment. I'd like to ask the proponent if he envisions a situation where a person, within 30 days of sending the notice, requests the minister to refer the matter to the Federal Court, Trial Division. That's how it presently reads.

Are you proposing that the person could do this in alternatives, could, first of all, ask to go to the Federal Court, Trial Division, and if that doesn't work, for whatever reason, then go to the Federal Court of Appeal, and if that doesn't work, then go to the Supreme Court of Canada, and if that doesn't work...or go in any order of those three—in other words, go directly to the Supreme Court of Canada, on this notice?

Mr. Pat Martin: I don't think you would get leave.

Mr. John McKay: Your motion doesn't presume leave, though.

A voice: That's a good point.

The Chair: Can I get a further clarification?

Mr. Sabourin, you might want to take us through the overview you did. I understood that there were already appeal mechanisms at the Federal Court level, and after the GIC decision, it is in fact appealable to the courts. Could you give us that overview again, in brief, so that we understand it? I think everybody's getting a little confused.

Mr. Norman Sabourin: I'd like to begin by saying that the decision to take away citizenship is a decision of the executive, not the judiciary. That's the principle. We talked a bit earlier about the possible history of this provision, but it is a decision of the executive.

When the executive makes a decision, it has to do certain things. It has to comply with fairness, and in this case the Governor in Council has to hear representations on the person. When it decides to make an order, that order is reviewable under judicial review. All the actions the executive takes in matters of revocation, including actions of the minister, are reviewable under judicial review.

Without being facile about it, without underestimating the importance of it, I would say that the step to the Federal Court is like icing on the cake. It's like saying this is so important that we're not going to let the executive make decisions on this, decisions that are reviewable by the courts, unless the executive first asks the Federal Court, “What do you think? Was there fraud or was there not fraud? What are the facts? What do the facts tell us?”

• 1655

In as simple terms as I can put it, this is the difference between the process that is in the current legislation and in Bill C-16, versus a totally new process that I imagine would resemble the American process of judicial decisions on revocation.

The Chair: Could I ask you to clarify one point? You said the executive initiates the action. Obviously the next step is to go to the Federal Court. After it gets to the Federal Court, I think you said it was subject to appeal at the Federal Court level.

Mr. Norman Sabourin: There are two ways in which an appeal or review would be possible. The first would be where an applicant—and we have a case right now in front of the Federal Court—files motions and says they want to clarify issues of evidence or issues of procedure. That can be appealed.

The second mechanism of appeal is when the Governor in Council comes out and says here's my report.

The Chair: But where is it appealed to, to which level of the Federal Court?

Mr. Norman Sabourin: It's the Federal Court, Trial Division, appealable to the Federal Court, Appeal Division, appealable on leave to the Supreme Court of Canada.

The Chair: Okay, that's what I wanted you to clarify.

John.

Mr. John Bryden: Actually, I want to make a comment about something else, after we deal with the amendment.

The Chair: So what you might be saying about this amendment is that it's redundant because those appeal mechanisms are there, but perhaps at a different place or time. Am I putting words in your mouth?

Mr. Norman Sabourin: I would have to agree with your statement. If we rethink the review of the initial facts by the Federal Court, we are rethinking the entire principle of who decides to revoke citizenship.

The Chair: Thank you.

Is there any further debate on the amendment? Andrew.

Mr. Andrew Telegdi: This is a very important section, on which we have had lots of presentations, both under Bill C-63 as well as under Bill C-16. What is at issue here relates to section 12, which says that once you acquire citizenship, you have all the rights and obligations of every other Canadian. The problems with this act that have been expressed are problems that I share. I'm one of five million to six million Canadians who are citizens by choice. If Mr. Sabourin says we're misunderstanding the process, I don't think he understands the presentations that were made.

If we misunderstand the process, then I say to you, Alan Borovoy of the Canadian Civil Liberties Association misunderstood the process, and so did the B'nai Brith. All sorts of lawyers who presented to us misunderstood the process.

What is at question here is that Mr. Sabourin said fraud is fraud, and if you obtain it by fraud, then you should have it revoked. We agree. Everybody agrees on that. This applies to people not born in this country. It applies to me, to you, Mr. Chairman, and to a number of others around this table. If I'm charged with fraud and I go to criminal court, I have an automatic right to appeal. If I'm charged with fraud and I go to civil court, I have an automatic right to appeal. If you look at our whole jurisprudence in this country that has been built up over generations, centuries, it has always been based on your right to appeal.

What's the situation we have under this bill? We have a minister, any minister—and we might not have this minister, but other ministers from other parties, perhaps parties that aren't even around this table—and they start an action against an individual. They are basically prosecutors of the case, because they put the case together with the justice department and they go to court and say to an individual, “We are going to remove your citizenship because we believe you obtained that citizenship by fraud.”

• 1700

Next step, 30 days after the notice has been sent...and that's very important. The person who is subject to having their citizenship revoked, after it has been sent by the minister, has 30 days to respond. If they want to contest it, they take it to the Federal Court. They get to go to the trial division.

We have lots of Federal Court cases in the trial division. What is peculiar about this one is that it's not appealable. So if we have one judge who makes a mistake—and my God, nobody is infallible, so you're going to have that happen—that is passed on now to the minister, who then makes a report and takes it to cabinet for revocation.

What do we really have, Mr. Chairman? We have a situation where the person who prosecutes the case and receives the information from the Federal Court judge then makes a report to cabinet. The cabinet makes a decision on revocation. This really separates us from all the other processes we have, because when we get into the legal arena, where the state is going to exercise power against a citizen, we have an independent judiciary.

I submit to you that I don't want any political process deciding my citizenship. If I got into this country by fraud, take it away from me, but damn it, give me due process.

That's what we don't have. We don't have due process. The cabinet is not going to sit down and review all the minutes, review all the points of law. My God, they're not lawyers. That's why we have the legal system set up.

An hon. member: Too many are.

Mr. Andrew Telegdi: Mr. McKay knows we don't appreciate him at times. We kid him at times. But I tell you, if my citizenship is at stake, I would demand a fair hearing. I would demand due process right before the courts.

That's why I like the Supreme Court of Canada. Ultimately the people at the Supreme Court of Canada are not going anyplace for any other job when they're finished there. They're the final stance in the judiciary.

Let me tell you, by going with this process what you are doing is what used to be done. It's a virtual Star Chamber. The individual's right to appeal is not there. If the individual commits fraud, get them out of here, but damn it, give me the same right to fight the case that every other citizen has.

If I come to this country, apply as a refugee, and get turned down by the IRB, I have leave to appeal to a Federal Court. Damn it, give me a chance on a legal basis to appeal a Federal Court's decision. Give me leave to appeal it.

I truly believe, if you miss that process, you're saying that the Federal Court judges are infallible, and that's where you're mistaken.

By God, do you want to be reviewing a Federal Court judge's case? How the heck are we going to do that? We're not judges. The people in cabinet aren't judges. So in basic fairness....

To go beyond that, you have a clause in Bill C-63 that, if passed, would have revoked the citizenship of your chairman over there, who was a four-year-old boy when he came to this country, if something was charged against his father. If something was wrong in the way my father got into this country, it would have been able to revoke my citizenship.

My citizenship, to me, is a very big chunk of my identity. It's not something you go through without giving it due process before the courts. Virtually every person we had appearing before us asked for that.

What if the prosecution or the defence wins, and the prosecution wants to appeal? We have that happen every day in this country. Prosecution will lose a case and they will appeal that case. That's only right. If the judge made a mistake, the prosecution should be able to go to a higher court and prove that the person got here by fraud.

All I'm asking for is fairness, fairness for the individual and fairness for the six million Canadians who are now citizens by choice.

• 1705

The Chair: Andrew, listen, I know you're very passionate about this. Some of us can get very passionate about our citizenship and about making sure citizenship is something we treasure and protect. As you said, fraud is fraud, and if that can be proven within due process, then there's no question, but I guess what we're trying to find out is what is that due process.

I must admit, I'm still a little confused.

I'll go to a couple of speakers, Leon and Mr. Bryden.

Mr. Leon Benoit: Mr. Telegdi has brought up some points that I think were brought to this committee by several witnesses.

We've had, I think, two answers from Mr. Sabourin, one in which he said that under this act there could be an appeal to the Supreme Court, and another in which he said in Canada it's a tradition that the executive council determines whether someone should have a citizenship revoked, and it shouldn't go to the court.

I would like some clarification that really does clarify this issue, if I could, Mr. Sabourin.

The Chair: I will go to him in a moment.

John Bryden.

Mr. John Bryden: What I don't understand in the context of all this is why clause 18, which also deals with revocation, has, in subclause 18(4), the right to apply for judicial review. We're dealing in clause 18 with false identities—

The Chair: That's annulment stuff. Maybe we can ask officials.

Mr. John Bryden: I don't understand why one way in clause 18 and another way in clause 17.

The Chair: That's a very good question.

Maybe Mr. Sabourin could help with some of the confusion on subclause 17(3), where it says:

A decision of the Federal Court—Trial Division made under subsection (1) is final and, despite any other Act of Parliament, is not subject to appeal.

That's where I'm coming from. If I heard you correctly, I think you indicated that the executive commences the action of revocation based on fraud. If, then, within 30 days it could get to a Federal Court trial division, once that trial division deals with it, is it appealable at that stage?

I thought I heard you say yes, it could be, on motions and everything else at that stage before it went back to the GIC, but then subclause 17(3) confuses this somewhat.

I wonder if you could take us through this thing again, and I think Mr. Benoit and Mr. Bryden also have asked you some technical questions.

Mr. Norman Sabourin: Thank you, Chairman.

Let me talk about subclause 17(1) and the opportunity to be heard in Federal Court. This review process is, say, what I'm holding in my left hand. Once a decision is made by the Federal Court Trial Division, that's it. Finished. That's the end of what's in my left hand.

In my right hand is the action of the executive. The actions of the executive are reviewable.

Perhaps I could ask your indulgence to try to paint a parallel picture of a different process to perhaps shed some light.

I'm very thankful for the parliamentary secretary's intervention, because he did speak from the heart, and he is passionate about this issue. I think everybody shares his view that we do need to give due process and we need to have fairness in these kinds of matters.

Let me talk to you about my role as registrar of Canadian citizenship. I make decisions on entitlement to citizenship every once in a while, although not often, thankfully. Every once in a while, especially in complex cases, somebody comes forward and says “Listen, my father was a Canadian. I was born 50 years ago in Ghana but I'm a Canadian, and I want you to tell me I'm a Canadian.” Perhaps one of my predecessors sent this person a certificate of Canadian citizenship years ago, and today we discover that this person is not a citizen because the father never was a Canadian. Nobody was ever born in Canada. It was all fiction.

When I make that decision that the person is not a citizen, that decision is most certainly not final. When the executive makes a decision, it is most certainly reviewable. It can be appealed to the Federal Court Trial Division, on to the Appeal Division, on to the Supreme Court of Canada. And I've regretfully been named in an action in the Supreme Court, which we lost.

• 1710

All of these actions by the executive are always reviewable in, I would say, a fair and due process because of the judicial review process that exists in our law. In revocation matters, we're saying this is so serious, we're going to ask the absolute top executive, the Governor in Council, to make this decision. And the Governor in Council will not be able to make that decision before getting a report from the minister.

The minister cannot give that report until she's asked the Federal Court what they think. In my left hand I have this evidence. Do you think this evidence is good? And if the Federal Court says yea or nay, that's final. It's finished. The Federal Court has pronounced itself. But in the right hand, the process of the executive making decisions continues. In each and every step of the way, when the executive makes a decision, there is a review possible to the Federal Court of Canada, and these decisions of the trial division are appealable.

I hope I haven't....

The Chair: Is it well known to everyone that all CIC decisions are reviewable to federal courts and eventually to the Supreme Court? That might be new to some of us. The general public may not know. It's nowhere to be found in the bill—that extra comfort level that my colleague Mr. Telegdi speaks so passionately about in terms of due process. We want to make sure you're absolutely right, that there is a process, that it's due process, that it in fact has all the checks and balances to make sure mistakes aren't made on either side.

Mr. Bryden.

I'm sorry, Mr. Sabourin. Mr. Bryden asked you the difference between clauses 17 and 18. How was clause 18 a little different from clause 17?

Mr. John Bryden: Can I just follow up on Mr. Sabourin's remarks here?

If the Federal Court has pronounced one way or another, and that's the final word, what are the chances of any review of the executive's decision ever being overturned, if the Federal Court has already pronounced? You're not proposing an appeal of the evidence. There's an appeal process for the decision based on the evidence. But the evidence still remains.

Mr. Norman Sabourin: I would suggest that if there's an appeal to the appeal division of a trial division decision, the evidence will still remain. The appeal division of the Federal Court will look at issues of law.

Mr. John Bryden: Well...I don't know.

Mr. Norman Sabourin: I'd like to address your other point on subclause 18(4). We have an obligation to give notice, and this doesn't seem to appear in clauses 16 or 17. Maybe there would be value in adding that, I don't know. But certainly every decision of the executive is reviewable—errors of law, errors of fact, errors of jurisdiction.

Mr. John Bryden: If I may make an observation, Mr. Chairman, when we put forward legislation like this, the whole world will be looking in on it. While it's very fine and proper to argue that behind this legislation there are processes that guarantee justice will be done and Mr. Telegdi's concerns will be looked after, the fact is that if we look at this, we do not see it. That concerns me, because I want people to be comfortable with this legislation. If there is a way to amend or change what we have before us in clause 17 to give people a better sense of comfort that justice is in this legislation, then maybe we ought to be looking at it.

I'm not challenging your explanations. I'm only saying that the concerns that activate my colleague here are concerns that may activate all kinds of other people.

The Chair: Mr. McKay.

Mr. John McKay: We seem to have strayed away from the amendment that was before us, Mr. Chairman. I wanted to ask Mr. Sabourin if my reading of this is correct with respect to the amendment.

I assume you have the amendment in front of you. Am I reading this correctly, that if Mr. Martin's amendment were to proceed, you would have three opportunities to challenge the facts of the minister?

Mr. Norman Sabourin: What I'm suggesting is if we want to have a review of the decisions on the facts, we're really talking about asking the judiciary to make the decision. It would certainly be strange to ask the court to make decisions that are appealable, reviewable, and then turn around and tell the....

• 1715

The Chair: Excuse me.

I'm sorry, but I think I told you this at our last meeting. I can't have people from the audience interfering with the work of the committee. That's why we have staff, and that's why we have everything else. If you want to pass it to someone, I can't allow that, or else we're going to lose control of due process and everything else.

Sorry, Mr. Sabourin.

Mr. Norman Sabourin: Chairman, I was saying that if there is a process of review of the initial decision on the facts and let's say that it does go to the Supreme Court, which is likely in some of these cases that are hotly contested, wouldn't it be strange for the Supreme Court to make a ruling and then for the matter to be referred back to the minister for her to make a report to the Governor in Council and for the Governor in Council to decide whether to make a revocation order? I think that would be a little unusual.

I'm very sensitive to the issue of perception and fairness, and I think it is up to this committee to decide what is a fair process and how it will be perceived to be fair.

The experience abroad certainly shows that if there is a decision in the first instance that says yes, there was fraud, or no, there wasn't fraud, and there is an appeal and the appeal disagrees with that and says there wasn't fraud, or yes, there was fraud, perhaps even there the perception of fairness diminishes in the public eye. Whoever has the biggest access or the biggest expertise in arguing their case on appeal is the one who will win the day.

The Chair: Leon Benoit.

Mr. Leon Benoit: I just want some clarification again. Without the amendment, would a person who is in the process of having his citizenship revoked have an appeal to the Supreme Court where new evidence may be considered? With the amendment, would an individual have a right to appeal to the Supreme Court where new evidence might be heard? There are the two situations.

Mr. Norman Sabourin: Eric, do you want to try your hand at that?

Mr. Eric Stevens: You're considering an instance of new evidence coming forward.

Mr. Leon Benoit: Yes.

Mr. Eric Stevens: I go back to my comment earlier that new evidence is very rarely introduced, whether you're dealing with an appeal or a judicial review.

I want to just add one comment to give you the context of the discussion. In the Luitjens case there was a challenge in that instance, and the challenge was that it was unconstitutional not to have an appeal in these proceedings. The Federal Court of Appeal said no, there's opportunity for perhaps that kind of matter to be considered later in the process, but there's no constitutional right to an appeal. That was more recently reaffirmed in the Katriuk case, where the applicants are seeking leave to appeal. So I just wanted to remind you of that. That's the legal framework.

The Chair: David.

Mr. Leon Benoit: I want some more clarification on that.

The Chair: While you're thinking, could we get to David's question for a moment?

Mr. David Price (Compton—Stanstead, PC): What I'm going to suggest is that maybe we could put this one aside for now.

The Chair: You read my mind. I was just about to—

Mr. David Price: Maybe you could make up a flow chart for us with and without.

The Chair: Margaret has already done it, but they'll do it too.

Mr. David Price: Perhaps we could have that tomorrow. I think it would be a little clearer. I think we can all read a flow chart quite easily. We seem to be getting lost in the details of different cases.

The Chair: Leon's question is a good one with regard to that new evidence sort of thing. You keep saying, Eric, that it's not allowed even under the present system on new evidence at the appeal section of the Supreme Court and everything else, and I think that's a question that needs to be addressed.

Mr. Leon Benoit: That's not what he said. He said it's rare that it's allowed. There's a huge difference.

The Chair: We're going to set this aside.

Mr. John Bryden: I'd like to just finish up. Is there any way of importing the idea contained in subclause 18(4) to clause 17? Can you give us some sense of that when we next convene?

Mr. Norman Sabourin: Yes.

• 1720

The Chair: I'm sorry, I couldn't hear what the answer was to John's question. What was it?

Mr. John Bryden: They said yes. They nodded.

Mr. Norman Sabourin: We'll be pleased to look at whether that would be possible.

The Chair: Okay. Thank you.

John.

Mr. John McKay: I've asked the same question twice. I'm not concerned about Mr. Martin's answer, but I was a little more concerned about your answer, Mr. Sabourin. An essential question on the amendment for me is whether this permits forum shopping. That's the issue. Maybe you can address that issue tomorrow. But that's what I'm going after.

Mr. Norman Sabourin: We will.

The Chair: We're going to stand, if I could, Pat, both your amendment and clause 17 until later on. I think it's sufficiently detailed, and we want to make sure we get it right. I think everyone's asking some of the tough and right questions.

(Clause 17 allowed to stand)

(On clause 18—Annulment order)

The Chair: Is there any debate on clause 18?

John, please, no more comma comments.

Mr. John Bryden: I'm deadly serious about the use of language. I think that's important in legislation. But that's not my concern here.

I do have a little problem with subclause 18(5). In subclause 18(1) the whole thing of denouncing or taking away citizenship has to do with using a false identity. Then we see in subclause 18(5) that the minister may not make this order more than five years after the day on which the citizenship was granted. This relates to my original question to you: Is fraud fraud forever? It would appear by subclause 18(5) that if you got away with your fraud for five years after you've been granted citizenship, you get away with it forever. Am I reading this correctly?

Mr. Norman Sabourin: In a way you are. However, the people who fall under the provisions of clause 18 also fall within the provisions of clause 17. In any case, they could be made subject to revocation proceedings. The difference with clause 18 is that it talks about recent evidence, objective evidence, uncovered by the minister to proceed more expeditiously. But after five years there's nothing that would stop a case from being referred—I guess we'll discover later how it will be referred—for revocation proceedings.

Mr. John Bryden: Why have subclause 18(5) at all, then? I don't understand why you've put the time limit of five years in subclause 18(5).

The Chair: Excuse me. If I could, clause 18, as I understand it, is under annulment provisions, which means there's a certain statutory time limit of five years. But that doesn't preclude moving from clause 18 to clause 17, which is revocation at any time. If fraud is fraud, it's timeless, in a sense. But clause 18 has a set time period with regard to annulment provisions. Is that right?

Mr. Norman Sabourin: That's correct. Loss of citizenship is a very serious matter, and because we're talking about objective cases that would come to light shortly after the fact, we don't want this to be a power of the minister to go on forever. The idea was let's limit the exercise of that power. Five years sounds good.

Mr. John Bryden: Thank you, Mr. Chairman. You have a job after this life.

(Clause 18 agreed to on division)

(Clauses 19 and 20 agreed to)

(On clause 21—Report of Minister)

Mr. Leon Benoit: I have an amendment on this that I'm going to bring forth at report stage, so I'll just hold off on that.

The Chair: Do you mean you don't want to give us the benefit of your wisdom now? That's what the purpose of committees is supposed to be. You don't want to test your good sense on the committee. You'd rather put it to the House of Commons, where it's sure to be refused, as opposed to taking your chances here. Perhaps you could have made a good argument like Pat did. Look at Pat Martin; he just about had us convinced. He might still have us convinced. You never know. You don't want to take your chances, eh, Leon? You don't respect the committee's.... All right.

• 1725

(Clauses 21 and 22 agreed to on division)

(On clause 23—Definitions)

The Chair: On clause 23, we have a question from Rob.

Mr. Rob Anders: I'm reading subclause 23(1). It mentions once again this concept of “threats to the security of Canada”, and it makes reference to the Canadian Security Intelligence Service Act. I remember that I had a question with regard to national security in terms of paragraph 11(f). I was told at that point that there really didn't seem to be anything that set aside what a stringent definition was, and there was no definition in the Criminal Code.

Here on subclause 23(1), with regard to “threats to the security of Canada”, I'm wondering if I can ask what the Canadian Security Intelligence Service Act lays out. If it's not in the Criminal Code, what's laid out here in clause 23 when you refer to the CSIS Act?

The Chair: Well, I could tell you to use the Internet and check the act out. It'll probably tell you, but I'm sure Eric has already—

Mr. Rob Anders: Well, I have the experts in front of me, and they're as good as the Internet. At least, I hope they are. I asked previously, and I didn't get an answer, so....

Mr. Norman Sabourin: Chairman, although it is available on the Internet, it is also on hard copy at page 117 of the clause-by-clause analysis. The phrase “threats to the security of Canada” refers to activities other than lawful advocacy, protest, or dissent that are detrimental to the interests of Canada, including acts of espionage, sabotage, clandestine or deceptive foreign-influenced activities, etc.

The Chair: Thank you.

Does that clarify it for you, Rob?

Mr. Rob Anders: Well, the other aspect of it is paragraph 23(2)(b), I guess, and that is with regard to an indictable offence. Because it mentions an indictable offence, the question I have there is whether or not we are to take an indictable offence as being equal to that as a threat to national security. In other words, the description you just gave with regard to the CSIS Act seems to be something that is much stricter than the definition of an indictable offence. In paragraph 23(2)(b), however, it only makes mention of an indictable offence, so I'm wondering whether or not.... Because in a sense, then, you have the definition under the CSIS Act, which you just went through, and then you have paragraph 23(2)(b), which—

The Chair: They're two different acts. One is the CSIS Act, and the other one reads “any Act of Parliament.” That's why you have to separate them into paragraphs (a) and (b). Will it cause action as to subclause 23(2)? Yes, but you have to set them apart because they come under two different acts.

Mr. Rob Anders: Fair enough, but the question still remains with regard to paragraph 23(2)(b). Is an indictable offence automatically considered a threat to national security?

The Chair: No, they're two different things. I'm sorry to answer that, but if you don't trust me, I'll let Mr. Sabourin—

Mr. Rob Anders: Well, Mr. Chairman, just as a point, even though I like you, you have been corrected a few times by counsel, so I'd like to get the response from counsel if I could.

The Chair: Of course.

Mr. Steve Mahoney: He's been corrected by a lot of us.

The Chair: I'm pleased that you pointed that out.

Mr. Norman Sabourin: Chairman, I think you're certainly correct in this.

The Chair: All right! That's two out of three.

Mr. Norman Sabourin: The fact is there are two different types of activities there that can be the subject of an order. The first part is the activities that are a threat to national security, as defined in the CSIS Act. The other side is not an indictable offence per se, it's a pattern of activity. It's the organized crime provision. It's where there's a pattern of activity, of a bunch of people conspiring to commit indictable offences. It is the provision respecting organized crime.

The Chair: He says everything so well, you see. It's organized crime.

• 1730

Mr. Rob Anders: Then what I'm taking from it, Mr. Chairman, is that an indictable offence is not a threat to national security, but that somehow somebody's going to determine what a pattern of indictable offences is and whether or not that pattern is a threat to national security. Is that right?

Mr. Eric Stevens: In fact there are many examples of indictable offences that would involve no national security interests whatsoever. What you see in subclause 23(1) is a reference to threats to the security of Canada. Then, when you go down to paragraph 23(2)(a), you see that same wording, “threat to the security of Canada”. Paragraph (b) is that additional category that is referring to the organized crime type of activity. You would then have to figure out whether or not the indictable offence in question is such that it fits within the type of thing contemplated by paragraph (b).

Mr. Rob Anders: If I may, then, I'd like to ask if you can give some examples of indictable offences that aren't a threat to security. You said there are some, so I'm just....

Mr. Eric Stevens: Something even as serious as murder is an indictable offence, yet it has no relevance to national security. At least it certainly will not in many instances.

The Chair: And if you murdered a spy, it's a double whammy.

Some hon. members: Oh, oh!

An hon. member: If they're underpaid, it's no problem.

The Chair: David.

Mr. David Price: Would this be appealable under the same terms we were talking about around clause 17, then?

Mr. Eric Stevens: There's a special procedure in place whereby the matter is decided by the Security Intelligence Review Committee, which is charged with dealing with all CSIS-type rules.

A voice: It's a complete set of rules.

Mr. Eric Stevens: Yes, it's a complete set of rules, and what this is doing is incorporating the provisions of the CSIS Act, which provides the Security Intelligence Review Committee, into the process here when we're dealing with security matters.

The Chair: If any of you want a really exciting time—Rob, you seem to have a flair for this kind of stuff—you might want to join that committee that reviews CSIS and all that. It's quite interesting.

Rob, go ahead.

Mr. Rob Anders: This one's on subclause 23(6), and it has to do with a report being made “when it is convenient to do so”. What I'm wondering is how council determines, or how the minister or whoever determines, when it's convenient to do so.

The Chair: That's interesting language. Good question.

Mr. Sabourin.

Mr. Norman Sabourin: Chairman, the Security Intelligence Review Committee has a lot of obligations placed on it under the CSIS Act. I'm not trying to be facetious, but anybody who wants to sit on it has to be a member of the Privy Council. It's a very serious business to sit on SIRC, and the committee, when it discharges its obligations regarding issues of national security, has to consider a lot of information in terms of what it can release and when it can release it, in order not to threaten Canada's security by the very action of releasing information. This provision merely uses language that allows SIRC to decide for itself when and how it's going to release information.

The Chair: The word “convenient” is a yucky word, but I understand what you're trying to say. It's probably when it's the most prudent to do so, as opposed to convenient, but whatever.

Mr. Leon Benoit: I'd like to know what the impact would be if we put in the amendment that was suggested by Ben Trister and the law society on 23(6):

On completion of its investigation, the review committee shall report to the Governor in Council on the investigation. The review committee shall, as soon as possible, but in consideration of the national interest, provide the report's conclusion to the person who is the subject of the report.

The Chair: Are you trying that out as a possible amendment?

Mr. Leon Benoit: I'm asking him for the impact of that amendment.

The Chair: Okay.

Mr. Norman Sabourin: My view, Chairman, is that it's an issue of wording rather than substance. We would be introducing a new type of wording to describe activities of SIRC. I think what the bar has proposed is certainly well intentioned, but I'm not sure there's a need to do it. We could try to actually analyse what the difference is between the two, but in the preliminary discussions we've had, we don't see the need to have this kind of new wording. It would seem to be—

Mr. Leon Benoit: You don't see the need. Does that mean there's no difference between the two in terms of possible interpretation?

• 1735

Mr. Norman Sabourin: I think there is a possible difference of interpretation. That's why we're trying to use wording that has been acceptable to the people we've consulted at CSIS on issues of national security. We're trying to use wording that has been understood in a certain way by CSIS and by SIRC. I think that to introduce new wording would be to possibly invite new interpretations of the way SIRC conducts its business.

Mr. Leon Benoit: So how has “convenience” been interpreted in the past? If it's a proven term, just explain a bit how it has been interpreted.

Mr. Norman Sabourin: I'm not sure that those very words are found in the CSIS Act or elsewhere. This is advice we've received from our colleagues at CSIS on what would make sense, and we've certainly verified with the justice department as to how it interacts with SIRC's obligations under the CSIS Act.

Mr. Leon Benoit: I thought you said that term had been used, that it was a proven term or something to that effect, and that this is why it's in here.

The Chair: Let's put it this way. It was tested, after extensive consultation—

Mr. Leon Benoit: No, I'm asking him, please, Mr. Chair.

Mr. Norman Sabourin: It's generally understood. I think it's a fair—

The Chair: Whether or not there's a need to change those words will come to the chair and this committee eventually anyway.

Go ahead.

Mr. Norman Sabourin: I think, Chairman, that it's generally understood in a certain way. That does not mean that it's found in legislation that has been interpreted by the courts. These are just the words that are understood in the work of national security. I'm certainly not an expert on the CSIS act. In drafting these provisions, we gave a lot of consideration to the advice we received from CSIS and the Department of Justice.

(Clause 23 agreed to on division)

(On clause 24—Appointment of retired judge)

The Chair: Question, Rob?

Mr. Rob Anders: Subclause 24(1) used the word “shall” with regard to the Governor in Council consulting with the leader of the official opposition for appointing a review committee.

The Chair: Oh, did you like that?

Mr. Rob Anders: Well, I'm wondering whether that's a definite case of mandating: that the Governor in Council must consult the leader of the official opposition.

I'm also going to make reference to the McGrath report, which was something that the government, when it was in opposition.... The House leader of the government now, when he was an opposition member, was part-author of the McGrath report, which laid out that various appointments should appear before government committees and not just be at the discretion of the Governor in Council.

I'm wondering whether this “shall” is indeed a mandate that the Governor-in-Council appointment must be upon consultation with the leader of the official opposition, and I wonder about the McGrath report recommendations. I wonder if that would have applied to these types of appointments being made to appear before committees—and before this committee in particular.

The Chair: Are there any comments?

Mr. Norman Sabourin: Chairman, clause 24 has to be read in conjunction with clauses 25 and 26. The hope is that under clause 24 there would never be a need to appoint a retired judge.

The appointment of a retired judge would be only if and when it is impossible for the review committee to act in a given case because of an issue of bias or prejudice or because there's an order by the Federal Court, in a judicial review, that SIRC could not hear a certain matter. In that case, as we found in proceedings two years ago, SIRC was incapable of acting and there was nothing in the legislation that allowed for any review by any independent committee, board, or tribunal of the matters dealing with national security.

This provision allows the appointment of a retired judge to hear matters that normally would be heard by SIRC, if and when SIRC is found to be unable or incapable of exercising its authority under clause 23. These provisions are just a repeat of what exists currently, Chairman.

(Clause 24 agreed to on division)

(Clauses 25 and 26 agreed to on division)

• 1740

(On clause 27—Declaration)

The Chair: Leon.

Mr. Leon Benoit: Subclause 27(4) is “The declaration is effective for five years after the date it is made.” Could you just explain why that's in there?

Mr. Norman Sabourin: Again, this repeats current provisions. It's felt that this—to prevent somebody from becoming a citizen—is such a serious order that it should not extend indefinitely. Placing a time limit on it ensures that the person can reapply after the period of time has lapsed and, if they are no longer a threat to Canada's security, become a citizen.

Mr. Leon Benoit: What type of situation could arise where they were a threat at one time and no longer a threat five years later?

Mr. Rick Limoges (Windsor—St. Clair, Lib.): The collapse of the Soviet Union.

The Chair: Thank you for that example, Rick.

Mr. Norman Sabourin: I'm not sure, Chairman. I would have to say that, number one, these types of orders are so extremely rare that to then talk about exceptions to the orders or.... It gets a little difficult. I believe—and I'd have to verify this—that since 1977 there have been something like two cases in which there was an order made for national security matters. We could double-check that, but it hardly ever happens.

(Clause 27 agreed to on division)

(On clause 28—Ineligibility)

The Chair: John, go ahead.

Mr. John Bryden: I just have a little problem with paragraph 28(d).

If I understand it correctly, if somebody's received a pardon in a foreign country for some sort of crime, the minister has no choice but to deny that person citizenship. So what happens in the case of, say, a Nelson Mandela or someone who is being recognized as a freedom fighter in a foreign country or even, staying with South Africa, where people have appeared before the Truth and Reconciliation Commission and have been granted absolution for whatever they've done?

I think my problem with this, if I'm correct, is that there is no ministerial discretion in cases like that. Is there?

Mr. Norman Sabourin: There is no discretion, but obviously these prohibitions apply for a period of only three years. In the example you gave of somebody in South Africa, yes, maybe it would take three years before they become eligible or are no longer subject to the prohibitions, but it is for a limited lapse of time.

Mr. John Bryden: Fair enough.

The Chair: Okay. Clause 28 has been moved—

Mr. Rob Anders: Whoa, Mr. Chairman.

The Chair: Rob.

Mr. Rob Anders: Thank you, Mr. Chairman.

With regard to paragraph 28(e), there's a reference to the conviction on “two or more summary conviction offences under any other Act of Parliament”. Just as a point of clarification, a point of curiosity, why the reference to two summary convictions rather than one or three or four?

The Chair: Two strikes, you're out...? I don't know. We'll find out.

Mr. Rob Anders: Well, you don't know, and I want to know.

The Chair: Sure.

Mr. Norman Sabourin: Chairman, the answer is that it was a recommendation of the report of this standing committee in June 1994, which we incorporated in the bill presented in Parliament.

Mr. Rob Anders: So one summary conviction doesn't count, but you get two and then...?

Mr. Norman Sabourin: The government deferred to the judgment of the committee.

The Chair: John, on that same point...?

• 1745

Mr. John Bryden: On clause 28 I have another point, just in passing. In paragraph 28(j), we again have a five-year period pertaining to people who have obtained citizenship through false documentation. I don't understand why the five-year clause is here. If it's false documentation, it's false documentation. Why would there be a five-year time limit?

Mr. Norman Sabourin: The five-year period is the period within which the person cannot reapply for citizenship. In other words, the person has gone through the entire process, they've been found to have committed fraud, and their citizenship has been taken away. Now the question is would they be able to reapply the next day for citizenship. Paragraph 28(j) says no, they will have to wait five years. You're in a way, under a five-year....

The Chair: It's under other prohibitions, John. I think you're mixing up the two five-year periods.

Mr. John Bryden: I think I'm getting mixed up. It seems to me that if someone has fraudulent papers, there should be no limit.

The Chair: But they've already been revoked. This is on how you get back into the system, to reapply for citizenship.

Mr. John Bryden: You shouldn't be able to reapply ever, if you've had fraudulent papers. Anyway, we'll leave it at five.

Mr. Norman Sabourin: I think those are good points. One mustn't forget that if the person committed fraud to gain access to Canada, they could find themselves losing even their permanent resident status, and then be subject to deportation. So there is that consideration, as well.

Mr. John Bryden: Okay.

(Clauses 28 to 30 inclusive agreed to on division)

(On clause 31—Appointment, tenure, removal and renewal of office)

Mr. Rob Anders: Subclause 31(1) makes reference to the appointment of a citizenship commissioner and the term “during pleasure”. Does it mean that position is therefore revocable and not actually a five-year position?

The members across can snicker as much as they like.

The Chair: That has nothing to do with pleasure. It's a term used....

Mr. Rob Anders: That's what I'm trying to clarify. Does that mean, therefore, the appointment can be for five years but it's a revocable term? Is it according to the Governor in Council's pleasure, or the citizenship commissioner's pleasure?

The Chair: It definitely isn't the commissioner's pleasure.

Go ahead, Mr. Sabourin.

Mr. Norman Sabourin: I presume the citizenship commissioner can resign at any time, if they wish to do so.

The Chair: With or without pleasure.

Mr. Norman Sabourin: With or without pleasure.

The words “during pleasure” are an established legal terminology, allowing authority and discretion to the Governor in Council to appoint and revoke the appointment. If those words were not there, presumably the Governor in Council would have to show cause and demonstrate why the person had to be removed from office.

The Chair: You would want that, just in case a commissioner or whatever acted—I shouldn't say improperly, but there may be grounds for it, as there are for judges and anybody else.

Rosaline.

Ms. Rosaline Frith: In general, the grounds would likely be because the services were no longer required. It might simply be that the person was in the wrong place for the granting of citizenship, and we no longer required their services.

The Chair: Rob.

Mr. Rob Anders: Sorry, Mr. Chairman.

Paragraph 31(7)(b) talks about promoting active citizenship. I want to ask a question of my Bloc colleague. I know there have been some arguments before on the use of flags by the heritage minister and the use of funds within the heritage department to “promote a federalist citizenship” within the province of Quebec.

Have there been any difficulties in the province of Quebec or elsewhere, that he's aware of, with regard to promoting active citizenship?

• 1750

An hon. member: That's out of order.

Some hon. members: Out of order.

Mr. Rob Anders: No, it's not out of order.

The Chair: Wait, he has an amendment on clause 33, which he may want to use as an opportunity to talk a bit about that.

Mr. Rob Anders: The reason I ask this question—

The Chair: Who are you asking the question of, a Bloc member?

Mr. Rob Anders: I can put the question to counsel. The reason I do so is that if we're allowing this clause to give sanction for the promotion of active citizenship, I'm wondering whether there have been accusations of abuse in promoting active citizenship.

Certainly there are accusations of abuse on behalf of the Minister of Heritage with regard to the—

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Chairman, I have a point of order. I think those questions should be ruled out of order.

The Chair: Thank you for your advice.

Does anybody want to answer that ridiculous question?

Mr. Rob Anders: No, I'm—

The Chair: He asked a technical question, whether there have been any problems with that. Rosaline is prepared to answer it.

Ms. Rosaline Frith: Perhaps we could come at this slightly differently and ask ourselves what was meant by “active citizenship”.

According to all of the work that has been done to date by the current judges in terms of promoting active citizenship, that would mean speaking to things like it's important to participate in your community. And it's important to respect the principles most Canadians live by: to be tolerant, to be anti-racist, etc. That's the kind of active citizenship that is envisaged and we would continue to envisage. And no, there have been no complaints about that type of active citizenship.

The Chair: I applaud Bernard for not taking the bait, but.... Uh-oh, I noticed his hand go up.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, could this rather limited definition of the commissioners's work not enable commissioners to play a more propagandist role in many respects? The definition is indeed very limited and could also be very permissive, to a certain extent.

[English]

Mr. Lynn Myers: Mr. Chairman, I have a point of order here.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I believe the question is relevant.

[English]

Mr. Lynn Myers: I have a point of order. Mr. Chairman, these people....

The Chair: I don't want to get into this kind of debate—

[Translation]

Mr. Bernard Bigras: Perfect.

[English]

The Chair: He asked a valid question, and—

Mr. Lynn Myers: No. Propaganda is not a valid question to ask of technical people.

The Chair: Yes, it is. As chair, I'm saying it is, and Rosaline's going to answer it.

[Translation]

Ms. Rosaline Frith: I can say that the commissioners will be selected among highly respected people, people who are very well known in their communities and who have been recognized by the Government of Canada and the various governments, throughout Canada.

Therefore, asking these people to grant citizenship to new citizens will truly help promote responsibility, citizenship, and awareness of their obligations.

Mr. Bernard Bigras: Mr. Chairman, I want to make this clear. I do not question the men and women who will be doing this work. I am absolutely convinced that these people are respectable. But has a clear definition of the commissioner's role been included in the law, in regulations, or in guidelines?

Ms. Rosaline Frith: Yes. We are currently drafting the guidelines for commissioners with the judges and various stakeholders across the country. We have discussions based on the existing guidelines, with a view to improving them.

Mr. Bernard Bigras: Thank you.

The Chair: Thank you, Rosaline.

[English]

We'll have Leon, and then that's it on the subject.

• 1755

Mr. Leon Benoit: I have two things, Mr. Chair.

First of all, I've noticed that all of the appointments of judges over this past year have been members of the Order of Canada. Is it the plan of the department to only appoint to the position of commissioner people who are members of the Order of Canada?

The Chair: Not necessarily.

Ms. Rosaline Frith: No. The way it reads, it doesn't say “only Order of Canada”. It's those people who have been recognized for their community service.

Mr. Leon Benoit: I know that's how it reads, but so much is left to regulation. How would we know what's in the regulations or what will be in the regulations?

Ms. Rosaline Frith: There will be no regulation for the naming of the commissioners. They respect the clause that appears in the act.

Mr. Leon Benoit: Could you tell me why all of the people appointed in the last year have been members of the Order of Canada?

The Chair: Isn't that a good thing? Order of Canada recipients obviously are distinguished by their community service.

Mr. Leon Benoit: Mr. Chair, I prefer to hear—

The Chair: No, but I would like to understand where you're coming from. Does that mean you like or don't like the Order of Canada?

Mr. Leon Benoit: It means I'm asking a question for clarification, Mr. Chair.

The Chair: Rosaline.

Ms. Rosaline Frith: I find it difficult to judge how others named people. I do know they met the criteria: they were distinguished for their community service and in fact had received an Order of Canada because of that. Therefore they fully met the criteria that were set out for that appointment.

The Chair: Well, maybe we should have elected commissioners.

Mr. Leon Benoit: I have an amendment to this.

The Chair: Now? Are you putting amendments now or later?

Mr. Leon Benoit: I'm going to put this amendment right now.

The Chair: Well, we need copies.

Mr. Leon Benoit: If you don't have it, I have it here.

The Chair: No, we'll get the copies and deal with it later. I'm not going to accept it, because it's not.... You can try it at the House of Commons. You didn't have any respect for us before.

Mr. Leon Benoit: What do you mean you're not going to accept it, Mr. Chair?

The Chair: Well, we don't have.... “I'm at clause 31, and I have to get copies for everybody”—that would have been the nice thing to do.

An hon. member: Is it translated?

Mr. Leon Benoit: But you can't refuse an amendment. How can you refuse an amendment?

The Chair: In the same way you didn't want to put one the last time.

Voices: Oh, oh!

Mr. Leon Benoit: It's up to me to decide whether I—

The Chair: Well, hey, it's at the discretion of the chair.

Mr. Lynn Myers: Challenge the chair then.

Mr. Leon Benoit: That's a hell of a good idea.

Mr. Rob Anders: Mr. Chairman, whoa! I have just one last question.

The Chair: Go ahead.

An hon. member: [Inaudible—Editor].

The Chair: I can show as much respect to this committee as he can.

An hon. member: Hear, hear!

Mr. Rob Anders: Mr. Chairman, it has to do with subparagraph 31(7)(c)(iii), with regard to the appropriate methods to evaluate knowledge of an official language and of rights and responsibilities. This is a question out of curiosity. What appropriate methods are being used to evaluate the knowledge of an official language?

An hon. member: Comprehension.

Mr. Rob Anders: Well, it mentions it, so I'm wondering what it is.

Ms. Rosaline Frith: If I understand the question correctly, you're asking what methods are being used today to evaluate citizenship applicants on their knowledge.

Mr. Rob Anders: Yes, I'd like to know what “appropriate” is. What are the methods and what is an appropriate method?

Ms. Rosaline Frith: I can answer that question, but this has to do with the citizenship commissioners providing advice on appropriate methods.

The methods in place today consist of a test that questions citizenship applicants on their knowledge of Canada and at the same time tests their ability to speak either English or French. In the new act, what we are contemplating is to look very carefully at the knowledge test versus a language test. You will recall that in the act, it says for the knowledge portion of the test, one can have an interpreter present, and for the language part of the test, one does not have an interpreter present.

So the language tests need to be revised, and we will work with the commissioners. We will seek advice from the commissioners as well as from the Centre for Canadian Language Benchmarks and many others in order to best understand what would be the most appropriate methods to do that testing.

Mr. Leon Benoit: On a point of order, Mr. Chair, I have asked to have an amendment brought before the committee.

The Chair: And I'm going to allow you to read it. It would have been nice to have copies so that the translators could have had it, but go ahead. I'm going to have you read it very slowly so that the interpreters can do it.

• 1800

Mr. Leon Benoit: Mr. Chair, when I said earlier that I was bringing an amendment forth in the House, I believe you yourself and other members of the committee said “Why don't you bring it here? We're reasonable people; we might deal with the amendment and may accept it.”

The Chair: Okay, go ahead and read it; we can hardly wait.

Mr. Leon Benoit: Yet you as chair refuse to accept the amendment.

The Chair: I'm accepting it now.

Mr. Leon Benoit: I'm very pleased you've changed your decision, Mr. Chair.

The Chair: You could have given it to us just like you gave us the other ones, but that's okay. It's common courtesy, that's all.

Mr. Leon Benoit: This amendment was something that actually several members opposite agreed to during the discussion on this act. Many people voiced their opposition to having the patronage appointments to the position of commissioner. What this clause will do is have the commissioners hired through the same process as is used by the Public Service Employment Act so that they will no longer be political patronage appointments. The hiring process will be in line with what you'd expect to happen in the case of a position like this.

My amendment is that Bill C-16 in clause 31 be amended by replacing lines 22 to 25 on page 15 with the following:

31.(1) Subject to subsection (1.1), the Governor in Council may appoint a person as a Citizenship Commissioner, following an open competition under the Public Service Employment Act, to hold office, during pleasure, for a term of not more than five years, and the person may be removed for cause by the Governor in Council.

Removal for the first year

(1.1) A Citizenship Commissioner may be removed by the Governor in Council without cause during the year of appointment.

The Chair: Everybody's heard the amendment. Are there debates, questions?

An hon. member: Call the question.

Mr. Leon Benoit: I want a recorded vote, Mr. Chair. I thought there might be some debate on that, being as several members opposite supported that position during the committee hearings.

The Chair: Well, if they don't want to talk about it because they think it's ridiculous, can I help it?

Mr. Leon Benoit: You wouldn't want to lose any patronage appointments, would you, Mr. Chair?

The Chair: The question has been called and you've asked for a recorded vote. We're going to do so and then we're going to adjourn until tomorrow.

(Amendment negatived: nays 8; yeas 4)

The Chair: On the main motion—

Mr. Rob Anders: On clause 31, Chair—

The Chair: Yes. You've now spoken three times on clause 31, I want you to know.

Mr. Rob Anders: It's a favourite clause of mine, Mr. Chair.

The question is—

The Chair: I've said we're going to adjourn.

Mr. Rob Anders: I understand. We can hold it over until tomorrow then. That's fine.

The Chair: Go ahead.

Mr. Rob Anders: Ms. Frith put forward the idea that there are two components of the test, one being that of knowledge and the other being that of language. You said some of these things were under review and under consideration. I'm wondering whether the idea was to have both the knowledge and the language parts made the same so that translators would not be required for knowledge testing and language and knowledge would be tested with the same test.

Ms. Rosaline Frith: I can assure you that we wouldn't be flying in the face of what's in the act. The act clearly says that for purposes of knowledge testing, an interpreter can be present. You can't do the same test for knowledge and language at the same time if there's interpreter there when you're taking a language test.

The Chair: Okay, that's it. Clause 31.

Mr. Leon Benoit: A recorded vote.

• 1805

(Clause 31 agreed to: yeas 8; nays 4)

The Chair: Ladies and gentlemen, we're adjourned until tomorrow morning at nine o'clock, same room. Thank you for your cooperation.